Under the Radar

Blog Roll

Kagan scores win on terror-support law

Supreme Court nominee Elena Kagan scored a significant win in that court Monday morning as the justices, voting 6 to 3, rejected a challenge to a federal law which makes it a crime to provide “material support” to groups the federal government has labeled as terrorist organizations.

Kagan, who serves as Solicitor General, personally argued for the government in the case addressing the constitutionality of a law against giving “training,” “expert advice or assistance,” “service,” and “personnel” to designated terrorist groups. The legal challenges were brought by individuals and groups who said they wanted to give political and legal advice to two organizations on the U.S. terrorism list: the Kurdistan Worker’s Party, also known as the PKK, and the Tamil Tigers.

Chief Justice John Roberts, writing for the majority, said Congress’s law on the subject did not run afoul the Constitution because banning such non-violent assistance appeared to be critical to undermining the organizations’ terrorist activities.

“Material support of a terrorist group’s lawful activities facilitates the group’s ability to attract ‘funds,’ ‘financing’ and ‘goods’ that will further its terrorist acts,” Roberts wrote. “If only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II.”

“Not even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights,” Justice Stephen Breyer wrote in dissent, which took issue with the government’s claim that political or legal advice was interchangeable with funds or weapons. “There is no obvious way in which undertaking advocacy for political change through peaceful means or teaching the PKK and LTTE, say, how to petition the United Nations for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible,” Breyer wrote.

The court’s conservative justices picked up some moderate and even liberal support for their position. Unsurprisingly, Justices Scalia, Alito and Thomas joined the chief justice’s opinion upholding the statute. But so did Justice Anthony Kennedy, who is sometimes a swing vote, and Justice John Paul Stevens, who tends to vote with the liberal wing. Breyer’s dissent was backed only by Justices Sonia Sotomayor and Ruth Bader Ginsburg.

The decision could strengthen the government’s hand in prosecutions brought under the material support law and could also have the effect of discouraging U.S. supporters of terrorist groups from acting on their behalf. But critics of the law have warned it could chill those not advocating for a cause from engaging in public debate. For instance, a broad interpretation of the ban, such as that endorsed by the court on Monday, could render it a crime for newspapers to print opinion pieces from designated terrorist groups. The Washington Post did just that in 2008 when it ran an op-ed from top Hamas leader.

Roberts, however, tried to dismiss such questions by limiting the opinion to the specific kinds of advice the groups before the court wanted to give.

“We do not, however, address the resolution of more difficult cases that may arise under the statute in the future,” Roberts wrote. He said the court was not endorsing a ban on speech that helped terrorist groups but was not coordinated with them, nor was it endorsing any attempt to limit advocacy for U.S.-based organizations.